The Institution Of Homeopaths ... vs Union Of India
2021 Latest Caselaw 17100 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                               &
           THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
 FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
                    WP(C) NO. 16359 OF 2021
PETITIONERS:

           THE INSTITUTION OF HOMEOPATHS KERALA
           REG.NO.264/87, REGISTERED UNDER THE TRAVANCORE
           COCHIN LITERARY, SCIENTIFIC AND CHARITABLE
           SOCIETIES ACT XII OF 1955, HEAD OFFICE: IHK
           BHAVAN, TC.43/1496(4), BALAVAN NAGAR ROAD,
           PERUNALLY JN. VALLAKKADAVU P.O., MUTTATHARA,
           TVM-695 008 REPRESENTED BY IT GENERAL SECRETARY,
           DR. BHABINESH P. 36/767, BHABIN, VENGERI P.O.,
           KOZHIKODE-673 010.
           BY ADV SERGI JOSEPH THOMAS


RESPONDENTS:

    1      UNION OF INDIA
           REPRESENTED BY THE SECRETARY,
           MINISTRY OF AYUSH, AYUSHBHAWAN,
           B-BLOCK, GPO COMPLEX, INA,
           NEW DELHI-110023.
    2      STATE OF KERALA
           REPRESENTED BY THE CHIEF SECRETARY TO
           GOVERNEMNT, GOVERNMENT OF KERALA,
           GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM-695 001.
    3      SECRETARY TO GOVERNMENT
           DEPARTMENT OF HEALTH AND FAMILY WELFARE,
           GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM-695 001.
 W.P(C).16359/2021            -:2:-




     4      SECRETARY TO GOVERNMENT
            DEPARTMENT OF AYUSH, GOVERNMENT OF KERALA,
            GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM-695 001.
     5      THE DIRECTOR
            THE DIRECTORATE OF HOMOEOPATHY, EAST FORT,
            THIRUVANANTHAPURAM-695 023.


            BY ADV SHRI.P.VIJAYAKUMAR, ASG OF INDIA



THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.08.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 W.P(C).16359/2021                      -:3:-




                                JUDGMENT

Dated this the 13th day of August, 2021

S. Manikumar, CJ

The Institution of Homeopaths Kerala, a registered body, has filed the

instant writ petition for the following reliefs:

"A) Declare that respondents 2 to 5 are duty bound to provide treatment to COVID-19 patients through the Homoeo Medical Colleges, Government Homoeo clinics and hospitals, in the light of Exhibits-P2 circular dated 6.3.2020, P5 and P11 guidelines issued by the Ministry of AYUSH and Exhibit-P8 judgment of the Hon'ble Supreme Court dated 15.12.2020 and Exhibit-P9 circular dated 24.12.2020 issued by the 4th respondent;

B) To issue a writ of mandamus or such other appropriate writ, order or direction commanding the respondents 2 to 5 to take immediate steps to provide treatment to the COVID 19 patients through the Homoeo Medical Colleges, Government Homoeo clinics and hospitals, in the light of Exhibit-P2 circular and Exhibits-P5 and P11 guidelines issued by the 1st respondent and Exhibit-P8 judgment of the Hon'ble Supreme Court dated 15.12.2020 and Exhibit- P9 circular dated 24.12.2020 issued by the 4th respondent.

C) To issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents 2 to 5 to take a decision on Exhibits-P13 and P14 representations expeditiously by providing treatment to the COVID 19

patients through the Homoeo Medical Colleges, Government Homoeo clinics and hospitals, in the light of Exts.P2 circular and P5 and P11 guidelines issued by the 1 st respondent and Exhibit-P8 judgment of the Hon'ble Supreme Court and Exhibit-P9 circular issued by the 4 th respondent, considering the present alarming situation in the State of Kerala."

2. Short facts leading to filing of the writ petition are that the

petitioner is a society of Homoeopathy Doctors, established under the

Travancore Cochin Literary, Scientific and Charitable Societies Act XII of

1955 with Reg.No. 264/87. The grievance of the petitioner is concerning

the hostile and illegal stand of respondents 2 to 5, in providing

treatment to the COVID-19 patients in Homoeo Medical Colleges,

Homoeo Clinics, and Hospitals under respondents 2 to 5, in spite of

Exhibit P2 circular and advisory dated 6.3.2020 issued by the

Government, Exhibits-P5 and P11 guidelines for Homoeopathic medical

practitioners for COVID-19 issued by the Ministry of AYUSH,

Government of India, Exhibit-P8 judgment of the Hon'ble Supreme

Court of India, and Exhibit-P9 circular dated 24.12.2020, issued by the

4th respondent, viz., Secretary to the Government, Department of

Ayush, Government of Kerala, Thiruvananthapuram.

3. According to the petitioner, State of Kerala holds an extensive

network of Homoeopathic colleges, Clinics and Hospitals. But, the

respondents 2 to 5 are not taking any effective steps to provide

treatment to the COVID-19 patients, as stated in Exhibit-P2 circular and

advisory dated 6.3.2020 and Exhibits P5 and P11 guidelines issued by

the Ministry of AYUSH, Government of India. By Exhibit-P8 judgment

dated 15.12.2020 in Civil Appeal No. 4049/2020, the Hon'ble Supreme

Court held that Homoeopathy is contemplated to be used in preventing

and mitigating COVID-19 as is reflected by the advisory and guidelines

issued by the Ministry of AYUSH. When Kerala State holds an extensive

network of Homoeopathic Clinics and Hospitals, not providing/

permitting treatment, and dispensing medicines to COVID-19 patients in

the Homoeo Medical Colleges, Homoeo Clinics and Hospitals, during this

pandemic situation, is nothing, but a heinous crime against the society,

and violative of the fundamental rights of the people of State of Kerala.

4. In the above circumstances, petitioner society had submitted

Exhibits-P13 and P14 representations dated 21.05.2021 before the

Hon'ble Chief Minister of Kerala and the Minister for Health. Though

Exhibits-P13 and P14 representations were forwarded to the 3 rd

respondent, viz., Secretary to the Government, Department of Health

and Family Welfare, Government of Kerala, Thiruvananthapuram, he has

not taken any steps in the above matter. The issue raised by the

petitioner had great importance, in view of the present alarming

situation, high Test Positivity Rate of COVID-19 patients, and the

upcoming 3rd wave of COVID-19 pandemic. Hence, this writ petition.

5. Earlier, we directed the learned Senior Government Pleader to

get instructions. However, on this day, when the matter came up for

hearing, though larger reliefs are sought for against the respondents 2

to 5, Mr. Sergi Joseph Thomas, learned counsel for the petitioner,

submitted that the petitioner would be satisfied if a direction is issued

to the respondents 2 to 5, to take a decision on Exhibits P13 and P14

representations dated 21.05.2021 expeditiously, submitted for providing

treatment to COVID-19 patients through Homoeo Medical Colleges,

Government Homoeo Clinics and Hospitals.

6. Submission of learned counsel for the petitioner is placed on

record. Though Mr. Sergi Joseph Thomas, learned counsel for the

petitioner, sought for an opportunity of hearing before the said

authority, the same cannot be done.

7. Representations said to have been submitted before the

Hon'ble Chief Minister of Kerala and the Health Minister, be forwarded to

the Secretary, Health and Family Welfare Department, and if such

representations (Exhibits P13 and P14) are pending on file, the same

are directed to be disposed of, in accordance with law, as expeditiously

as possible, within four weeks from the date of receipt of a copy of this

judgment. Petitioner is also permitted to send a copy of the judgment

made in this writ petition for speedy disposal of the representation.

Sd/-

S. Manikumar, Chief Justice

Sd/-

Shaji P. Chaly, Judge sou. xxx

APPENDIX OF WP(C) 16359/2021

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE IN RESPECT OF PETITIONER SOCIETY ISSUED BY THE REGISTRAR OF SOCIETIES, KERALA.

EXHIBIT P2 TRUE COPY OF THE CIRCULAR D.O.

No.S.16030/18/2019-NAM DATED 6.3.2020 ISSUED BY GOVERNMENT OF INDIA, MINISTRY OF AYUSH.

EXHIBIT P3 TRUE COPY OF THE G.O.(Rt) No.156/2020/AYUSH DATED 8.4.2020 ISSUED BY GOVERNMENT OF KERALA.

EXHIBIT P4 TRUE COPY OF G.O.(Rt)No.161/2020/AYUSH DATED 21.4.2020 ISSUED BY GOVERNMENT OF KERALA.

EXHIBIT P5 TRUE COPY OF THE GUIDELINES FOR HOMOEOPATHY PRACTITIONERS FOR TREATMENT OF COVID-19 PATIENTS ISSUED BY THE MINISTRY OF AYUSH.

EXHIBIT P6 TRUE COPY OF THE LETTER REF.

No.1000/ESI/S3/2020 DATED 30.7.2020 WRITTEN BY THE DIRECTOR OF MEDICAL AND RURAL HEALTH SERVICES (ESI) CHENNAI.

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 29.4.2020 SUBMITTED BY THE KERALA GOVERNMENT HOMOEO MEDICAL OFFICER'S ASSOCIATION.

EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 15.12.2020 OF THE HONOURABLE SUPREME COURT IN CIVIL APPEAL NO.4049/2020.

EXHIBIT P9 TRUE COPY OF CIRCULAR NO.B1/150/2020/AYUSH DATED 24.12.2020 ISSUED BY THE 4TH RESPONDENT.

EXHIBITP10 TRUE COPY OF LETTER REF.NO.4047/A3/2019 DATED 17.5.2021 SENT BY THE DIRECTORATE OF INDIAN MEDICINE AND HOMOEOPATHY, CHENNAI.

EXHIBIT P11 TRUE COPY OF THE GUIDELINES FOR HOMOEOPATHY PRACTITIONERS FOR TREATMENT OF COVID-19 PATIENTS ISSUED BY THE MINISTRY OF AYUSH EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 2.6.2021 IN WPC NO.11555 OF 2021.

EXHIBIT P13 TRUE COPY OF THE REPRESENTATION DATED 21.5.2021 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE CHIEF MINISTER OF KERALA WITH ENGLISH TRANSLATION.

EXHIBIT P14 TRUE COPY OF THE REPRESENTATION DATED 21.5.2021 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR HEALTH, WITH ENGLISH TRANSLATION.

EXHIBIT P15 TRUE COPY OF GO(RT) No.425/2020/AYUSH